Mikulsky v. Noom, Inc.

682 F.Supp.3d 855

Erika MIKULSKY, individually andon behalf of all others similarly situated, Plaintiff, v. NOOM, INC., Defendant.

Case No.: 3:23-cv-00285-H-MSB

United States District Court, S.D. California

Signed July 17, 2023

James Pizzirusso, Pro Hac Vice, Hausfeld LLP, Washington, DC, Steven Nathan, Hausfeld LLP, New York, NY, Thomas M. Beh, Pro Hac Vice, Murray Law Firm, New Orleans, LA, for Plaintiff.

Aarti Reddy, Kyle Christopher Wong, Michael G. Rhodes, Cooley LLP, San Francisco, CA, David Scott Louk, San Francisco, CA, Christina Jensen, Cooley LLP, San Diego, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

MARILYN L. HUFF, District Judge

On May 8, 2023, Defendant Noom, Inc. filed a motion to dismiss Plaintiff Erika Mikulsky's complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). (Doc. No. 12.) On June 5, 2023, Plaintiff filed a response in opposition to Defendant's motion to dismiss. (Doc. No. 17.) On June 13, 2023, the Court issued an order directing the parties to file supplemental briefing to address Plaintiff's Article III standing in light of the Court's order in Lightoller v. Jetblue Airways Corporation, No. 23-cv-00361-H-KSC, Doc. No. 18, Order Granting Motion to Dismiss, 2023 WL 3963823 (S.D. Cal. June 12, 2023). (Doc. No. 21.) On June 16, 2023, Defendant filed a reply in support of its motion. (Doc. No. 22.) On June 26, 2023, both Plaintiff and Defendant filed supplemental briefing in accordance with the Court's June 13 order. (Doc. Nos. 23, 24.)

The Court, pursuant to its discretion under Civil Local Rule 7.1(d)(1), determines the matter is appropriate for resolution without oral argument and submits the motion on the parties' papers. For the reasons below, the Court grants Defendant's motion to dismiss.

Background

Defendant is a Delaware corporation that has its principal place of business in New York. (Doc. No. 1, Compl. ¶ 6.) Defendant is a digital health and wellness platform that focuses on helping individuals lose weight and lead healthier lives. (Id. ¶ 42.) Defendant operates the website, www.noom.com (the "Website"). (Id.) Defendant procures and embeds various Session Reply Code - from third-party Session Reply Providers, including FullStory - on Defendant's website to track and analyze website user interactions with the Website. (Id. ¶¶ 43-44.)

Session Replay Code enables website operators to record, save, and replay a website visitor's interactions with a given website, including "mouse movements, clicks, keystrokes (such as text being entered into an information field or text box), URLs of webpages visited, and/or other electronic communications in real-time." (Id. ¶¶ 1, 22; see also id. ¶¶ 24-25.) Once the events have been recorded by a Session Replay Code, a website operator can view a visual reenactment of the user's visit through the Session Replay Provider, usually in the form of a video. (Id. ¶ 27.)

Plaintiff visited Defendant's website to "browse[ ] for different products for sale." (Id. ¶ 51.) Plaintiff used "her mouse to hover and click on certain products and services" and typed "her personal information into text fields." (Id.) During her visit, Plaintiff's communications were captured by Session Replay Code and sent to various Session Replay Providers. (Id. ¶ 53.) Plaintiff alleges that Defendant's conduct violates the California Invasion of Privacy Act ("CIPA"), California Penal Code § 630 et seq., and constitutes the tort of invasion of privacy rights and intrusion upon seclusion. (Id. ¶ 3.)

On February 14, 2023, Plaintiff filed a class action complaint against Defendant, alleging claims for: (1) violation of CIPA; and (2) invasion of privacy - intrusion upon seclusion. (Id. ¶¶ 72-97.) By the present motion, Defendant moves to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. No. 12-1 at 6-21.) The Court also sua sponte asked the parties to address Plaintiff's Article III standing under Federal Rule of Civil Procedure 12(b)(1). (Doc. No. 21.) Defendant moved to dismiss Plaintiff's complaint on that ground as well. (Doc. No. 24.)

Discussion

Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6) to dismiss Plaintiff's complaint for lack of subject matter jurisdiction, lack of personal jurisdiction, and for failure to state a claim,¹ respectively. (Doc. No. 12 at 6-10, 11-25; Doc. No. 24 at 4-9.) Specifically, Defendant argues that Plaintiff's claims should be dismissed because Plaintiff failed to establish that she suffered an injury in fact and thus lacks standing to bring her claims and because the Court lacks personal jurisdiction over Defendant. (See id.)

I. Legal Standards

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss claims for lack of subject matter jurisdiction. "Rule 12(b)(1) jurisdictional attacks can be either facial or factual." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

Here, Defendant's Rule 12(b)(1) briefing focuses solely on the allegations in Plaintiff's complaint, and, thus, Defendant makes a facial attack under Rule 12(b)(1). (See Doc. No. 24 at 4-9.) "In deciding a Rule 12(b)(1) facial attack motion, a court must assume the facts alleged in the complaint to be true and construe them in the light most favorable to the nonmoving party." Strojnik v. Kapalua Land Co. Ltd., 379 F. Supp. 3d 1078, 1082 (D. Haw. 2019) (citing Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)); see Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1039 (9th Cir. 2003); Rimac v. Duncan, 319 F. App'x 535, 536 (9th Cir. 2009).

B. Rule 12(b)(2)

Under Federal Rule of Civil Procedure 12(b)(2), a complaint may be dismissed for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). "Personal jurisdiction over a nonresident defendant is tested by a two-part analysis. First, the exercise of jurisdiction must satisfy the requirements of the applicable state long-arm statute. Second, the exercise of jurisdiction must comport with federal due process." Dow Chemical Co. v. Calderon, 422 F.3d 827, 830 (9th Cir. 2005) (quoting Chan v. Society Expeditions, 39 F.3d 1398, 1404-05 (9th Cir. 1994)). California's long-arm statute states that a court "may exercise jurisdiction on any basis not inconsistent with the Constitution of [California] or of the United States." Cal. Civ. Proc. Code § 410.10. Thus, California's long-arm statute permits courts to exercise personal jurisdiction within the limits of due process. Daimler AG v. Bauman, 571 U.S. 117, 125, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014).

Under the Fourteenth Amendment's Due Process Clause, courts may exercise personal jurisdiction over any defendant who has sufficient "minimum contacts" with the forum that the "maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). There are two bases for exercising personal jurisdiction over a non-resident defendant: (1) "general jurisdiction," which arises where defendant's activities in the forum state are sufficiently "substantial" or "continuous and systematic" to justify the exercise of jurisdiction over him in all matters; and (2) "specific jurisdiction," which arises when a defendant's contacts with the forum give rise to the claim in question. See Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

"With respect to a corporation, the place of incorporation and principal place of business are paradigm bases for general jurisdiction." Daimler AG v. Bauman, 571 U.S. 117, 137, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (internal quotations omitted). Courts are limited to exercising general jurisdiction in forums where the corporation has continuous and systemic contacts, such that it is essentially at home. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011).

For specific jurisdiction, the Ninth Circuit uses a three-part test to determine if a defendant's contacts with the forum state are sufficient. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Under that test:

"(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable."

Boschetto, 539 F.3d at 1016; see also Myers v. Bennett Law Offices, 238 F.3d 1068, 1072 (9th Cir. 2001); Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977).

The plaintiff bears the burden of establishing personal jurisdiction. Martinez v. Aero Caribbean, 764 F.3d 1062, 1066 (9th Cir. 2014); Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008) ("In opposition to a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper"). "[T]he plaintiff need only make a prima facie showing of jurisdictional facts." Glob. Commodities Trading Grp. v. Beneficio de Arroz Choloma,...